Monday, June 29, 2015

Same-Sex-Marriage of America Vs 377 IPC in India

                Homosexuality And 377 IPC
                A judicious, situational and factual analysis

In a long-sought victory for the gay rights movement, the Supreme Court ruled by a 5-to-4 vote on 25th June 2015 that the Constitution guarantees a right to same-sex marriage
Justice Kennedy was the author of all three of the Supreme Court’s previous gay rights landmarks. The latest decision came exactly two years after his majority opinion in United States v. Windsor, which struck down a federal law denying benefits to married same-sex couples, and exactly 12 years after his majority opinion in Lawrence v. Texas, which struck down laws making gay sex a crime.
Resent USA  Supreme Court judgment has brought 377 IPC again in light. The Supreme Court of India turned down high court (HC) judgment on consented homosexuality. Hence, article 377 was in limelight. Supreme Court (SC) judgment gave a big space for debate on this issue. Indian conditions support SC judgment under current situation.  In future, it may, but situation is not ripe for any change in 377 at present. Health, social, cultural and natural facts, and situations don’t permit any interference in it as of now. Article 377 protects our culture, moral, natural sexual habit, and keeps generation going.
Naz Foundation, a Non Governmental Organization (NGO) in a Public Interest Litigation, challenged  the constitutional validity of Section 377 of the Indian Penal Code, 1860 (IPC), which criminally penalizes what is described as “unnatural offences”, to the extent that the said provision criminalizes consensual sexual acts between adults in private.  
The challenge is founded on the plea that Section 377 IPC, on account of it covering sexual acts between consenting adults in private infringes the fundamental rights guaranteed under Articles 14, 15, 19 & 21 of the Constitution of India. Limiting their plea, the petitioners submit that Section 377 IPC should apply only to non-consensual penile non-vaginal sex and penile non- vaginal sex involving minors
Article 377 says Unnatural Offences - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The Delhi High Court passed a landmark judgment holding Section 377 to be violative of Articles 21, 14 and 15 of the Constitution, insofar as it criminalised consensual sexual acts of adults in private. Hence writ petition was allowed on July 7, 2009.
In an appeal, SC in its judgment on December 11, 2013 allowed appeal and set aside the HC judgement. This pronouncement brought 377 into debate. This issue affects and associates with our social, cultural, biological (medical) and political sentiments. Hence, both supporters and opponents are giving their own logic to prove their cases.
Political classes are divided.  Congress supports it. Congress president Sonia Gandhi said in a statement, in a rare reaction to a court order “I am disappointed that the Supreme Court has reversed the previous High Court ruling on the issue of gay rights. The High Court had wisely removed an archaic, repressive and unjust law that infringed on the basic human rights enshrined in our constitution”.
After keeping mum on the issue for some time, BJP cleared its stand on it. In an interview to The Telegraph, BJP President Rajnath Singh said, "We will state (at an all-party meeting if it is called) that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported."
Newly formed Aam Admi Party has opposed the SC judgement. The Samajwadi Party has made it clear that it will oppose any amendments to Section 377 if it comes in Parliament for discussion. Party leader Ram Gopal Yadav said, "Homosexuality is unethical and immoral, it is against the culture of the country and we will fight it."

A blog “The spark and the blame” has given medical and moral reasons against same-sex practice. There is substantial evidence that homosexual practice is harmful. A few are summarised below. 

Promiscuity and short-short term relationship: homosexual behaviour involves what a writer called “an almost compulsive promiscuity.” 75 % of homosexual men have had more than 100 partners in their lifetime, most of them strangers. A Los Angeles study found that male homo averaged over 20 partners a year. Lastly, only 7-8% of homosexual men and women have ever had relationships lasting more than three years. This differs vastly from heterosexual practice. As Schmidt writes “Promiscuity among homo is not a mere stereotype, and it is not merely the majority experience- it is virtually the only experience.”

Increase incidence of drug use: researchers report higher rates for drug and alcohol abuse among same-sex practicing.  They are more likely to use marijuana (89% vs 2% of hetero), cocaine (50% vs6% of hetero), and poppers (72% vs 2% of hetero). Another Boston study from 1985-88 supports above facts.
            Physical damage and complications: men and women bodies are designed for sexual intercourse with each other in a way that men bodies are simply not designed for sex with other men and the consequences are often physically traumatic. As a result, practising homosexuals are at greater risk of prostate damage, ulcers and ruptures, and chronic incontinence (Schimidt118)
Sexually transmitted diseases and AIDS: Besides physical trauma, many viral and non-viral infections trouble the homosexual populations. Non AIDS diseases include amebiasis, syphilis and hepatitis B (65% of homo men) affects badly.  The 75% STD incidents rate among homo is remarkable. This is to say little of the AIDS epidemic to which homo men are especially vulnerable. A Canadian study found that half of people living with AIDS are homosexual men.
Lower life expectancy: As a consequence of these medial issues especially the AIDS epidemic, homo men have a life expectancy that is significantly lower than heterosexual men. One Canadian study acknowledges it.
Increased incidence of mental illness, depression and suicide: homosexuals suffer from a severely higher incidence of some types of mental illness, especially depression and suicide. Schmidt finds that 40% of homo men have a history of major depressive disorder compared to 3% of men generally.
Dr. John R Diggs, Jr. in his write-up ‘The Health Risks of Gay Sex’ has cautioned the youth. He says it is clear that there are serious medical consequences to same-sex behaviour. Identification with a gay, lesbian and bisexual community appears to lead to an increase in promiscuity, which in turn leads to a myriad of STD and even early death.
 Social impacts of homosexuality are not good.  Domestic violence, child molestation are more common in homosexuals than in heterosexuals, even children of lesbian or gay parents are also sensitive to complex sexual behaviour . On academic ground too they are not at par with their heterosexual counterparts.
One can say that this problem is due to their discrimination with heterosexuals in society but these facts are reported from places where gay marriages are legal like in Netherland and Sanfransisco. Most important thing is that it disturbs the basic building block of society i.e. family. Homosexuality has become a major force that tears down society and harms our culture.
There is a misconception that being gay is an innate characteristic which cannot be changed but researches shown that there are abundant cases where this sexual orientation is changed by appropriate psychological treatment and also with the support and ethical guidance. If something affirm their homosexual behaviour, there are few chances that they could ever overcome from there complex sexual orientations.
It is also important to mention the fact that everything is not permitted in the name of freedom of rights. Youth should be warned of the undeniable health risks associated with a homosexual lifestyle. Worldwide scenario reveals that  while fifteen countries have legalized gay marriage and another three allow it in some areas, homosexuals remain persecuted in many parts of the world.
India is well cherished democratic country. Most of the decisions are taken on majority basis. Roughly a gay population is estimated about 25 lakh. Amending law 377 IPC for a big minority is against the concept of democratic wishes. If it is done, then it will disquiet the majority 99 %. It will infringe in their moral, social, political and bio- medical sentiments and ethics directly or indirectly.
            The highest Indian Court has favoured status quo. This complex issue is getting fast favour to amending it. It is assisted by the spill over effects of the developments worldwide on this. Inspite of all supportive progress on this matter, our SC sees that all ground realities are not favouring it in current Indian situations.
 Therefore, it maintained the originality of 377. Social, political, moral, physical and medical grounds are not ripe for any change in judicious evaluation. Hence, now it is left to our public leaders to assess the situation and act accordingly by a legislative step.

Heera Lal(Views are personal and based on different sources )
  Ref:
24.  http://timesofindia.indiatimes.com/india/Gay-sex-remains-illegal-as-Supreme-Court-refuses-to-review-ruling/articleshow/29515452.cms
15http://timesofindia.indiatimes.com/world/uk/Gay-couples-marry-for-first-time-in-England-and-Wales/articleshow/32912562.cms
16http://timesofindia.indiatimes.com/home/stoi/all-that-matters/Indian-men-are-having-a-tough-time-dealing-with-the-sexual-revolution/articleshow/32939321.cms
27.